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Entries in Accommodation
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Most business owners are aware that if their business is public-facing they need to provide access for the physically disabled under the Americans with Disabilities Act. By definition, Title III under the ADA provides that individuals cannot be discriminated against on the basis of disability, “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of accommodation by any person who owns, leases, leases to or operates a place of public accommodation.” While classically this includes what we would typically think of as public-facing businesses, such as movie theaters, restaurants, bowling alleys, and hospitals, it does also include private businesses, like doctors’ offices, accounting firms, and even non-profits.

Earlier this month, a District of Massachusetts court issued an opinion which held in part that that a hospital’s refusal to permit an employee to maintain a patient-care position after refusing an influenza vaccination on account of religious beliefs was proper. The plaintiff in the matter was an administrative associate in the emergency department and was typically one of the first people to interact with patients and family members handling intake, registration, and affixing patient identification bracelets—thus requiring her to touch and be in close proximity to patients. The hospital notified employees that employees working in patient-care areas needed to be vaccinated for influenza. The plaintiff refused the vaccine, alleging that her “religion had a moratorium on all vaccinations.”

While the hospital did question whether the plaintiff had a sincerely held religious belief, the court did not focus on this argument and instead found that the hospital had attempted to reasonably accommodate the plaintiff by providing her with the opportunity to move to a non-patient-care position and that allowing her to maintain her position without the influenza vaccination would have been an undue hardship.

Last week Judge Joseph N. Laplante of the United States District Court for the District of New Hampshire issued a decision in Posteraro v. RBS Citizens, N.A., Civil No. 13-cv-416 (D.N.H. Dec. 29, 2015), on Defendants’ Motion for Summary Judgment. The case involved a former Citizens Bank employee who was terminated from Citizens Bank after failing to return to work after a leave of absence for her medical conditions—post-traumatic stress disorder (“PTSD”), depression, and anxiety. Ms. Posteraro brought claims for disability discrimination (for failure to provide a reasonable accommodation); sexual and disability harassment causing a hostile work environment (including allegations that her tenure at Citizens Bank was “rife with gender and disability-based harassment”); intentional infliction of emotional distress; wrongful discharge; retaliation (after she opposed the alleged sexual harassment and pursued accommodations for her disabilities); and constructive discharge.

When was the last time you reviewed the “minimum lifting requirements” in your job descriptions? In several cases this year, courts have looked skeptically at job requirements listed in an employer’s job description. Specifically, judges have not been willing to take the employer’s word for it that lifting, say 50 pounds, is an actual requirement of the job. These inquiries come when an employer defends its decision to not hire someone on the basis of a disability or when they refuse an accommodation under the ADA.

You, like I, may not have been up-to-date on Methadone’s street names—but now you are. After that brief (but important) education, we turn to why this information is relevant to your workforce and human resources practice.

Earlier this month, the EEOC filed a Complaint against a Maryland-based company alleging disability discrimination as a result of the company’s failure to hire a recovering drug addict who was currently using methadone. The Plaintiff’s Complaint alleges: “Cox’s [sic] has a record of a disability based upon her 19-year drug addition,” and as a result “Defendant regarded Cox as having a disability based on her methadone use.” (Complaint, ¶13g,h.)

Recently, New Mexico employer Presbyterian Healthcare Services successfully defended a claim of disability discrimination after terminating a Physician's Assistant who tested positive for medical marijuana. The case, Smith v. Presbyterian Healthcare Services, involved a Physician Assistant, Donna Smith, who through a staffing agency, Advantage Locum, applied for and was hired for a position on February 17, 2014. After obtaining the results of a drug test, however, Presbyterian Healthcare Services discovered that Ms. Smith had tested positive for marijuana. Ms. Smith responded that her use of marijuana was pursuant to New Mexico'a Lynn and Erin Compassionate Use Act, 26-28-1 NMSA, and was to assist with her Post-Traumatic Stress Disorder. Presbyterian, however, terminated her employment on February 21, 2014.

As a result, in June 2014, Ms. Smith filed suit in state court alleging that she was discriminatorily terminated and Presbyterian had improperly failed to accommodate her serious medical condition in violation of New Mexico's Human Rights Act. After discovery, Presbyterian filed a Motion for Summary Judgment arguing that it is a federal contractor which accepts Medicare/Medicaid reimbursements and thus must comply with the Federal Drug-Free Workplace Act of 1988. Accordingly, in order to receive these government contracts (for Medicare/Medicaid reimbursement), the Company had to provide a drug-free workplace--and thus the Company's termination of Ms. Smith was not discriminatory. The Court agreed, granting summary judgment in the Company's favor.